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Federal agencies are drafting pre-emptions barring state lawsuits into the preambles of agency rules and regulations. The pre-emptions of state laws have been written into the preambles of the Food and Drug Administration’s (FDA) new drug-labeling rule, the Consumer Product Safety Commission’s (CPSC) mattress-flammability rule, and a pending National Highway Traffic Safety Administration (NHTSA) regulation on motor vehicle roof-crush standards. The preambles are introductory opinions that do not have the force of law. However, federal courts generally give deference to a rule-making agency’s view of its own regulations. Consumer lawyers charge that by adding the pre-emptions, federal agencies are attempting an end-run around Congress. “Pre-emption is a stopper-an absolute bar to any kind of remedy of any sort,” said Joan B. Claybrook, president of Public Citizen, a national public interest group in Washington. Consumer advocates are looking for a good liability case to challenge federal pre-emption when the issue comes up, Claybrook said. “These things are going to have to be duked out in state courts,” she said, adding that when they are litigated, consumer advocates will have to ensure that the test cases are tried by lawyers who really know the issue. Ira Rheingold, general counsel to the National Association of Consumer Advocates in Washington, said that federal pre-emption is one of the quiet ways that banks and industry are trying to insulate themselves from consumer tort claims-and appears to be part of the Bush administration’s tort reform agenda. The White House did not return a call for comment. ‘Sky is falling sentiment’ Linda E. Kelly, vice president, policy and research for the U.S. Chamber of Commerce Institute for Legal Reform, said that criticisms of federal pre-emptions of state law suggest a ” ‘sky is falling’ sentiment on the other side. “Our basic view is that the agencies have developed tremendous expertise in their individual arenas, and that it is more appropriate for them to be setting the standards than for individual state courts,” Kelly said. It makes better sense from the standpoint of manufacturers with products in interstate commerce that “there should be a pretty high standard to find negligence” if they are in compliance with federal regulations, she said. Victor E. Schwartz, head of the public policy group in the Washington office of Kansas City, Mo.-based Shook, Hardy & Bacon, defended the FDA drug-labeling rule that pre-empts state causes of action for a failure to warn. “The idea is to make simplified warnings that are easily understood by the lay person and a uniform national policy, rather than have 51 different juries around the country making up the rules on a failure to warn,” Schwartz said, noting that plaintiffs are free to assert other state causes of action. Scott Milburn, press secretary for the Office of Management and Budget, said in a statement that the U.S. Supreme Court “has frequently recognized that federal agencies, rather than courts, are often in the best position to make this determination about what best protects public safety. “Under the Constitution, federal laws take priority over inconsistent state laws. Decisions about whether federal and state laws conflict, and whether particular rules should preempt state laws, are made agency-by-agency and rule-by rule,” the budget office statement said. Several agencies have pre-empted state laws in preambles to new rules. The FDA’s new drug-labeling rule, set to take effect on June 30, pre-empts state causes of action for a failure to warn. The CPSC’s new mattress-flammability rule, to take effect on July 1, pre-empts state law claims applied to mattress fire safety, a significant household hazard. The U.S. Department of Transportation’s final rule for revised Corporate Average Fuel Economy standards, to take effect in 2011, says that the federal Clean Air Act pre-empts state mandates to reduce greenhouse gases, such as the new California Air Resources Board greenhouse gas emissions rule. The NHTSA’s pending regulation, which concerns federal roof-crush standards relating to injuries from rollover accidents, pre-empt state products liability and wrongful death laws.

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